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Emerging Fields of Right of Publicity and Social Media Intersect at ABA IP Conference

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By Blake Brittain

March 26 — A “boom time” for right of publicity law goes hand-in-hand with the rise of social media, participants in a March 25 panel discussion at the American Bar Association's Annual Intellectual Property Law Conference concluded.

The ability to advertise using people’s names and images on the Internet and the rapid growth of commercial advertising on social media have been driving forces behind many new right of publicity issues, according to participants in a discussion titled “The Odd Couple: Rights of Publicity and Social Media.”

Social media started solely as a way for people to connect, Cydney A. Tune of Pillsbury Winthrop Shaw Pittman LLP, San Francisco, said, but it has changed rapidly to become an advertising platform for many businesses.

Think “revolution instead of evolution,” Tune said. And the tendency of marketers to try “exciting, new things” with new technology creates complex situations.

Some of these cutting edge cases, cited by Dale M. Cendali of Kirkland & Ellis LLP, New York, included Duane Reade's tweeting of a paparazzi photo of actress Katherine Heigl leaving one of its stores, a Samsung television ad with a robot designed to look like “Wheel of Fortune” presenter Vanna White, and a General Motors ad with Albert Einstein's head photoshopped onto a bodybuilder's physique, and all of these happened without authorization from the proper parties.

Cendali and Tune also said that social media is challenging traditional ideas of what a celebrity is, citing YouTube celebrities with millions of views on the site who endorse products, but do not have a presence in traditional media like television or film.

Patchwork of State Laws Causes Confusion

Because the vast majority of right of publicity cases have been settled, there is little precedent to help predict what will happen on a given issue.

A patchwork of different state laws, without an overarching federal right of publicity statute, further complicates things.

As Cendali pointed out, personality rights in states that recognize a right of publicity vary greatly.

For example, New York law offers only a nondescendible right in names and likenesses, but California law offers a more comprehensive, descendible right in names, signatures, photographs, images and likenesses.

Cendali said that creating a national right of publicity law would be difficult based on the conflicting interests involved in the debate.

“There has been talk, many times over the years,” about passing a national right of publicity law, Cendali said. “The trouble is, the people who tend to represent entertainers feel the statute should have certain characteristics like the California statute, and people who don’t represent celebrities tend to feel like it shouldn’t have a descendible right of publicity” among other characteristics.

“And for whatever reason there are not a lot of congressmen eager, historically, to try to resolve this,” Cendali said.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bna.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bna.com

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